Judgment:
Mansoor Ahmad Mir, J.
1. By the medium of this Civil First Appeal, the appellants have questioned the judgment and decree dated 30-6-2006 passed by Principal District Judge, Budgam, in a suit titled Mushtaq Ahmad Wani and Ors. v. State and Ors., for setting aside the same on the grounds taken in the appeal.
Brief facts of the case:
2. A suit came to be filed on 15th of March, 1999 before the trial Court for grant of compensation to the tune of Rs. 15 lakhs on the ground that one Shaban Wani who was performing agricultural vocation on 2nd of July, 1986 died due to electrocution after getting in contact with gay wire fixed to electric pole. The installation of the pole and tying of the gay wire with the walnut tree was in violation of the provisions of Electricity Act. FIR was lodged and charge sheet came to be presented against the employees of the electric department.
3. Appellants defendants resisted the suit. Following issues came to be framed:
1. Whether on 2-7-1986 one Shaban Wani was attending agricultural vocations and was found dead in the field due to electrocution? OPP
2. Whether electric lines standing in the fields at village Doda Khatoo were not erected by the defendants according to the rules? OPP
3. Whether the live conductor (high tension wire) had touched gay wire and as soon as the deceased came in the field and touched the walnut tree which caused his instantaneous death on spot, due to electrocution? OPP
4. Whether the death of deceased Shaban Wani is out come of sheer negligence and carelessness of the Electric, Department? OPP
5. Whether the plainGfte1approached to defendants several times for compensation and for employment of one of the plaintiffs and defendants after processing the papers for some time failed to pay the compensation? OPP
6. Whether the suit is hit by limitation? OPD
7. Whether the suit has not been properly valued, if so, what is its effect? OPD
8. Whether the suit is hit by mis joinder and nonjoinder of the parties? OPD
9. Whether the notice in terms of Section 80 CPC has not been served? OPD
10. Relief.
4. Plaintiff-respondents examined All Mohammad Dar, Sonaullah Wani, Ali Wani, Ghulam Mohammad Bhat, Subhan Wani, Mohammad Maqbool Wani and Mst. Khatjee one of the plaintiffs.
Defendants - appellants examined Ghulam Nabi Rather and Mohammad Sidiq Bhat.
5. All the witnesses examined by the plaintiff/respondents have deposed in one voice that deceased Shaban Wani died due to electrocution on 2nd of July, 1996 at his field when he came in touch with walnut tree. The said walnut tree was connected with gay wire - High Tension Line without insulators and was carrying electric current which resulted into death of the deceased. The deceased was farmer by profession and was dealing with fruit business. He was earning Rs. 5000/- per month and his age was 27 years at the relevant point of time. The witnesses have categorically deposed that death of the deceased was outcome of negligence of the defendants.
6. Defendants have examined witnesses who have deposed that accident was not outcome of the negligence of the department or its employees.
Issue wise Finding:
Issue Nos. 1, 2, 3 and 4.
7. I deem it proper to decide issues 1 to 4 by a common finding.
As discussed above, plaintiffs/respondents have proved by leading evidence that Shaban Wani was performing agricultural vocations on 2nd Of July, 1986 in his field and came in touch with electric wire arid died due to electrocution on spot. Electric line/poles were not erected by the defendants in accordance with the rules. The moment the deceased came in touch with electric wire which was connected with gay wire carrying electric current died on spot due to electrocution. The department and the employees of the department had, not acted carefully while discharging the duties and the said accident was outcome of sheer negligence and carelessness of the employees of the respondents department/defendants. The appellant has failed to rebut the evidence of the plaintiffs. In the given circumstances, the finding returned by the trial Court is upheld and issues 1 to 4 have been rightly decided in favour of the plaintiffs against the defendants.
Issue No. 5:
8. There is ample evidence led by the plaintiffs/respondents to the extent that appellants/department had assured the plaintiffs/respondents to pay compensation and employment to one of their family members. Thus, finding returned by the trial Court is upheld and issue No. 5 is also decided in favour of plaintiffs/respondents against the appellants/defendants.
Issue No. 6:
9. Mother, Mst. Khatijee, widow of the deceased, was major at the time of death i.e. on 2nd July, 1986 and other plaintiffs/respondents were minors. The suit came to be filed on 15th of March, 1999 just after 13 years. The fact that mother was major would not deprive the minors i.e. sons and daughters from the right to institute the suit and their relief/suit was not time barred.
10. In order to appreciate the controversy, it is profitable to reproduce Sections 6 and 7 of the Limitation Act herein:
6. Legal disability. - (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the first Schedule.
7. Disability of one of several plaintiffs or applicants. - Where one of several persons jointly entitled to institute a suit or make an application for, execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
11. While going through this provision, it is to be seen that whether major persons/plaintiffs are capable of giving discharge on behalf of minor plaintiffs. Admittedly, widow/mother at the best can claim share to the extent of one eighth and minor sons/daughters are entitled to rest of the share. If the mother/widow has not filed or has not made claim that would not debar the minors from filing suit at the time of attaining age of majority and the disability/minority of the plaintiffs would not also debar the major one from filing suit after the other plaintiffs attain the age of majority. This view is fortified by Judgment of Delhi High Court in case titled Abha Yadav and Ors. v. Municipal Corporation of Delhi and Ors. reported as : 2003 (3) ACJ 1620. It is profitable to reproduce paras 9 and 11 of the said judgment herein:
9. Mr. Thakur, learned Counsel for the plaintiffs has submitted that as per Section 2 of the Fatal Accidents Act, 1855, only one suit could be filed and since out of the five plaintiffs, three were minors at the time of accident and on the date of the filing of the suit, the period of limitation stood automatically extended in their favour by virtue of Section 6 of the Limitation Act, 1963 and this extended period of limitation also becomes available to plaintiff Nos. 1 and 5 by virtue of Section 7 of the Limitation Act, 1963. There is considerable force in the argument because in the case in hand even the Explanation II to Section 7 cannot be invoked because neither the plaintiff No. 1 nor the plaintiff No. 5 were capable of giving a discharge on behalf of the minor plaintiffs. A similar question arose and came up to be considered by this Court in the case of Bishan Dass v. Ramesh 1971 ACJ 203 (Delhi), where the claim petition under Section 110-A of Motor Vehicles Act filed by the two minor children of the deceased after the expiry of the prescribed period of limitation of 60 days was not considered to be barred by time because their mother could not give a discharge on their behalf as she and the minors had separate cause of action and each of them was entitled to separate compensation by virtue of provision of Section 110-B of the Motor Vehicles Act. In Para 7 of the said judgment, S.N. Shankar, J. had clearly laid down that where one of the several persons Jointly entitled to make' the application is under a disability and discharge can b$ given without the concurrence of such person under disability, then alone time will run against them all.
11. In view of the legal position emerging from a construction of Sections 1 and 2 of the Fatal Accidents Act and Sections 6 and 7 of the Limitation Act and the above referred decisions, this Court has no hesitation in holding that the present suit though filed after the statutory period of two years is still within limitation as the time got extended by legal fiction on account of the disability/minority of the three plaintiffs. The suit is, therefore, clearly within time and not barred by time. The issue is answered in negative and against defendants.
12. Accordingly, issue No. 6 is decided in favour of plaintiffs against the appellants/defendants and finding returned on the issue by the trial Court is upheld.
Issue Nos. 7, 8 and 9:
13. The suit is 20 years old. It will be against the interests of justice to dismiss the suit on technicalities. However, I have gone through the finding returned by the trial Court. The finding returned is well reasoned need no interference. It is worthwhile to mention herein that learned Counsel for the appellant has not advanced any argument vlz-a-viz said issues. Accordingly, the said Issues are decided in favour of the plaintiffs/respondents against the appellants/defendants.
Issue No. 10:
14. Admittedly, plaintiffs have proved that the age of the deceased was 27 years and was labourer by profession. The trial Court has taken his income as Rs. 5000/-per month and after deducting one third has held that the plaintiffs are entitled to Rs. 6.20 lakhs while applying multiplier 18. Keeping in view the schedule appended to the Motor Vehicles Act, multiplier 18 has been rightly applied. However, while making guess work and taking, into consideration the evidence on record, it can be safely held that deceased would, have been earning Rs. 3000/- per month, Thus, I hold that deceased was earning Rs. 3000/- per month in the year 1986. After, deducting one third from the income of the deceased it is held that plaintiffs/respondents have lost source of dependency to the tune of Rs. 2000/- per month. Thus, are held entitled to Rs. 2000 x 12 x 18 = 4,32,000/- with 6% interest from the date of institution of the suit till its final realization.
Accordingly the finding returned by the trial Court is modified.
15. Appeal is partly allowed and the judgment and decree is accordingly modified to the extent indicated above. Registry to prepare decree sheet. Send down the trial Court record.